Opinion
No. 93-1009.
Decided August 4, 1993.
Anthony G. Pizza, Lucas County Prosecuting Attorney, and Eric W. Slack, Assistant Prosecuting Attorney, for plaintiff.
Jeffrey Goldstein and Sarah A. McHugh, for defendants.
This case is before the court on the complaint of plaintiff Anthony G. Pizza, Prosecuting Attorney of Lucas County, Ohio, against defendants Jo K. Carter and Myung OK Lee to enjoin the operation of the Rainbow Spa massage parlor located at 5205 Telegraph Road, in Toledo, Ohio. For the reasons that follow, I find that the complaint should be dismissed.
I
The facts in this case are largely undisputed. The defendants Jo K. Carter and Myung OK Lee have owned the property at 5205 Telegraph Road, Toledo, Ohio, since 1986. In 1992 and 1993, a massage parlor known as the "Rainbow Spa" was operated at that property. From September 1992 until March 1993, Toledo police officers conducted an investigation of the Rainbow Spa. The result of the investigation was that six defendants were charged in the Toledo Municipal Court with numerous misdemeanor violations. The plaintiff alleges that the property is a nuisance because the defendants have permitted the property to be used for the purposes of prostitution. He seeks an injunction that would require that the business be closed.
II
This case is governed by the provisions of R.C. Chapter 3767, which relate to nuisances.
R.C. 3767.02 states:
"Any person, who uses, occupies, establishes, or conducts a nuisance, or aids or abets therein, and the owner, agent, or lessee of any interest in any such nuisance together with the persons employed in or in control of any such nuisance by any such owner, agent, or lessee is guilty of maintaining a nuisance and shall be enjoined as provided in sections 3767.03 to 3767.06, inclusive, of the Revised Code."
R.C. 3767.01(C) states:
"`Nuisance' means that which is defined and declared by statutes to be such and also means any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists * * * and the personal property and contents used in conducting and maintaining any such place for any such purpose. * * *"
Ohio courts have consistently held that these statutes may be used to enjoin activities involving obscenity, drugs and lewdness. State ex rel. Rear Door Book Store v. Tenth Dist. Court of Appeals (1992), 63 Ohio St.3d 354, 588 N.E.2d 116; State ex rel. Ewing v. Without a Stitch (1974), 37 Ohio St.2d 95, 66 O.O.2d 223, 307 N.E.2d 911; State ex rel. Miller v. Private Dancer (1992), 83 Ohio App.3d 27, 613 N.E.2d 1066; State ex rel. Freeman v. Pierce (1991), 61 Ohio App.3d 663, 573 N.E.2d 747, motion to certify overruled (1991), 60 Ohio St.3d 713, 573 N.E.2d 673; State ex rel. Pizza v. Strope (Mar. 10, 1989), Lucas App. No. L-88-045, unreported, 1989 WL 20263, reversed on other grounds (1990), 54 Ohio St.3d 41, 560 N.E.2d 765; State ex rel. Pizza v. Tom S.A., Inc. (Lucas C.P. 1981), 68 Ohio Misc. 19, 22 O.O.3d 309, 428 N.E.2d 878. See, also, State ex rel. Pizza v. Deja Vu, Inc. (Feb. 27, 1990), Lucas C.P. No. 90-0417, unreported (court has inherent power to enjoin as a public nuisance conduct which offends the public morals and decency).
A review of the statutes and Ohio case law reveals that there are two elements that must be proved before an injunction may be obtained under the nuisance statutes. The first element that must be proved is the existence of a nuisance, and the second element is that the defendants had knowledge of the activity constituting the nuisance, and either used, occupied, established or conducted the nuisance or aided or abetted another in such activity. Both elements must be proved by clear and convincing evidence. State ex rel. Freeman v. Pierce, 61 Ohio App.3d at 670, 573 N.E.2d at 751.
A. EXISTENCE OF A NUISANCE
The operation of a massage parlor or a "massage establishment" as it is known in the Toledo Municipal Code is not illegal in the city of Toledo. Chapter 1735 of the Toledo Municipal Code provides for the operation of a massage establishment if it is licensed and in compliance with the requirements of Chapter 1735. Thus, the plaintiff must prove that a nuisance occurred at an otherwise lawful business.
The plaintiff contends correctly that a "nuisance" within the meaning of R.C. 3767.01(C) exists where a property is being used for purposes of prostitution. The plain language of the statute provides a sufficient basis to hold that the provisions of R.C. Chapter 3767 may be used to enjoin prostitution. No Ohio cases have been found that have dealt with this issue; however, in Chicago v. Graci (1975), 30 Ill. App.3d 699, 701-705, 332 N.E.2d 487, 490-492, the court held that conduct similar to that alleged in this case could be enjoined pursuant to a statute almost identical to R.C. 3767.01(C). This case is persuasive. See, also, State v. Irving (Mo.App. 1985), 700 S.W.2d 529; People v. Louden (1983), 148 Cal.App.3d 1147, 196 Cal.Rptr. 582; Annotation, Massage Parlor as Nuisance (1977), 80 A.L.R.3d 1020. But, cf., State ex rel. Clemens v. ToNeCa, Inc. (Iowa 1978), 265 N.W.2d 909.
Ohio criminal statutes define "prostitution" as follows in R.C. 2907.25:
"(A) No person shall engage in sexual activity for hire."
"Sexual activity" is defined in R.C. 2907.01(C) as "sexual conduct or sexual contact, or both." R.C. 2907.01(A) and (B) define "sexual conduct" and "sexual contact." These sections state in part that:
"(A) `Sexual conduct' means vaginal intercourse between a male and female, and anal intercourse, fellatio, and cunnilingus between persons regardless of sex. * * *
"(B) `Sexual contact' means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, public region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person."
The investigation at the Rainbow Spa was under the control of the Toledo Police Division. Three law enforcement officers participated in the investigation in an undercover capacity. They each testified at the hearings in this case, and in addition, their police reports were admitted into evidence. The officers testified that when they went to the spa they would be instructed to disrobe and that following a shower and/or a sauna, they would be given a massage by a massage technician. During the massage the officers' private parts were not covered and the massage technicians touched their genitals contrary to the provisions of the Toledo Municipal Code. The officers further testified that on six of their nine visits, the massage technicians offered to, and did, fondle their genitals in exchange for money. In addition, during the execution of a search warrant, the officers seized some used condoms. Finally, an officer testified that during the execution of a search warrant in 1993 he observed an employee of the spa performing an act of oral sex on a customer.
A review of the evidence leads to the conclusion that the plaintiff has established by clear and convincing evidence that numerous acts of prostitution occurred on a regular basis at the spa between November 1992 and March 1993, and that these acts were part of an ongoing pattern of criminal activity. Plaintiff has proved the first element of his claim — that a nuisance existed at the Rainbow Spa.
B. KNOWLEDGE OF THE DEFENDANTS OF THE PROSTITUTION ACTIVITY AND ACQUIESCENCE OR PARTICIPATION IN THAT ACTIVITY.
R.C. 3767.02 provides that any person who conducts a nuisance, aids or abets in the conduct of a nuisance, or is an employee of such an establishment is guilty of maintaining a nuisance and is subject to an injunction. Ohio courts that have considered this section have consistently held that the plaintiff-must establish that the person against whom the injunction is sought had knowledge of the existence of the nuisance, and acquiesced or participated in some way in the activity constituting the nuisance. State ex rel. Ewing v. Without a Stitch, 37 Ohio St.2d at 101-102, 66 O.O.2d at 226, 307 N.E.2d at 915-916; State ex rel. Freeman v. Pierce, 61 Ohio App.3d at 668-671, 573 N.E.2d at 750-752; State ex rel. Pizza v. Strope, unreported, at 23-28; State ex rel. Pizza v. Tom S.A., Inc., 68 Ohio Misc. at 23-24, 22 O.O.3d at 311-312, 428 N.E.2d at 882.
In State ex rel. Rear Door Book Store v. Tenth Dist. Court of Appeals, supra, the Supreme Court affirmed an injunction closing a book store on the authority of a court of appeals decision that was attached as an appendix. In that opinion the Tenth District Court of Appeals by way of dictum indicated that in cases where First Amendment issues are not present, it might not be necessary to prove knowledge of the existence of the nuisance in order to obtain an injunction under the Ohio nuisance statute. 63 Ohio St.3d at 363, 588 N.E.2d at 124. However, the court went on to state that it need not decide this issue of scienter since the evidence before it clearly established that the defendants knew of the illegal activity occurring at the book store.
The court in State ex rel. Freeman v. Pierce, a nuisance case involving drugs, discussed in detail the basis for the requirement of knowledge and acquiescence or participation. The court began its analysis by discussing R.C. 3767.05(A), which states in part:
"In the civil action, evidence of the general reputation of the place where the nuisance is alleged to exist or an admission or finding of guilt of any person under the criminal laws against prostitution, lewdness, assignation, or other prohibited conduct at the place is admissible for the purpose of proving the existence of the nuisance and is prima-facie evidence of the nuisance and of knowledge of and of acquiescence and participation in the nuisance on the part of the person charged with maintaining it."
The court then concluded:
"Clearly, there would be no reason for including evidentiary presumptions in the statute unless it were necessary that the relator prove these elements. Therefore, the relator must show that the defendant knew of the drug offenses, and either participated in them, or acquiesced in their occurrence. The relator may use, but is not limited to, reputation and convictions arising from the premises to prove these elements. * * *
"In conclusion, we hold that in order to obtain an abatement order pursuant to R.C. 3719.10 and 3767.02 et seq., it is necessary for the relator to prove by clear and convincing evidence that the defendant had knowledge of and either acquiesced to or participated in a felony violation of R.C. Chapter 2925 or 3719 on the property." (Emphasis sic.) 61 Ohio App.3d at 670-671, 573 N.E.2d at 752.
A plaintiff may meet his burden of proving knowledge and acquiescence to or participation in any one of four ways: first by direct evidence; second by proof of the general reputation of the place where the nuisance is alleged to exist; and third and fourth by an admission by or a finding of guilt of any person under the criminal laws against prostitution at the site of the alleged nuisance. The last three categories of evidence create a rebuttable presumption of knowledge and acquiescence or participation under R.C. 3767.05.
The plaintiff in this case has failed to produce any evidence in any one of the four categories to establish that the persons named in the second amended complaint — Jo K. Carter, Myung Ok Lee and Occupants of 5205 Telegraph — had knowledge of the prostitution activity and acquiesced to or participated in that activity. No evidence was introduced to establish who the "occupants" of the spa were. There was no testimony linking the defendant Jo K. Carter in any way with the operation of the spa. The only evidence that was offered against defendant Myung OK Lee was that she was present when a search warrant was executed at the spa and arrests were made. There was no evidence offered that she knew of the prostitution activities at the spa and that she acquiesced in or participated in these activities. There was direct evidence that one Chong Kim applied to the city of Toledo for a license to operate the Rainbow Spa. However, that person was not made a party defendant in this suit. None of the employees who had been arrested and charged with prostitution was named as a defendant in the suit. No evidence as to the general reputation of the spa was introduced. Finally, there was no evidence that any of the employees who were arrested at the spa either admitted to prostitution activity or were convicted of that activity in the Toledo Municipal Court. Plaintiff has failed to prove the second element of his claim.
III
The plaintiff in an action to enjoin prostitution must prove not only that prostitution occurred, but also that the person or persons sought to be enjoined had knowledge of that prostitution and either acquiesced in or participated in it. Here the plaintiff proved that prostitution occurred at the Rainbow Spa. Given the victimization of the prostitutes and the injurious impact on the public morals that inevitably accompany prostitution, it is appropriate under Ohio law that the Rainbow Spa be closed. Yet, before a court may enjoin such activity, the plaintiff must prove that the individual or individuals sought to be enjoined had knowledge of that activity and either acquiesced in or participated in it. The plaintiff in this case failed to meet that burden, and that failure of proof requires that the complaint be dismissed.
JUDGMENT ENTRY
It is ORDERED that plaintiff's complaint be dismissed with prejudice at plaintiff's costs.
So ordered.